Gregory Eugene Napper v. United States

Appeal from the Superior Court of the District of Columbia (CF1-21557-07) (Hon. Herbert B. Dixon, Jr., Trial Judge)

The opinion of the court was delivered by: Thompson, Associate Judge:

(Argued February 15, 2011

Before BLACKBURNE-RIGSBY, THOMPSON, and OBERLY, Associate Judges.

Appellant Gregory Napper was charged by indictment with first-degree murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license, all in connection with the September 8, 2007 murder of Marvin Leon Carter. A jury found him guilty on all counts. On appeal, appellant argues (1) that the trial court erred in denying his motion to suppress statements he made while talking on his cell phone in a police interview room; and (2) that - no aiding and abetting instruction having been given - the evidence adduced at trial was insufficient to convict him of murdering Carter. We reject these contentions, and affirm the judgment of conviction.

I.

The government presented the following evidence at trial. Carter was shot to death on September 8, 2007, at about 6:15 p.m., while driving in front of appellant's home, located at 2220 Prout Street, S.E. Carter spent the afternoon of September 8, 2007, with his friend Malik Reeves, Jr. Reeves testified that he had stolen two cars the previous night - a green one and a silver one - and that he and Carter were riding in the green car when they noticed it was getting low on gas.*fn1 They parked the green car in an alley next to appellant's house and got into the silver car with their friend Jamal. As they did so, appellant and some other men who were standing in the alley asked Carter and Reeves whether the green car belonged to them, and whether they lived in the house next to the alley. Jamal said "yeah," and laughed at the men. Reeves heard a short man standing next to appellant say "they are lying like sh*t." Jamal, Carter, and Reeves then drove away in the silver car.

The three young men eventually abandoned the silver car, and Reeves and Carter returned to Prout Street to retrieve the green car. There, Reeves saw several men sitting on the porch of 2220 Prout Street, and as he and Carter walked into the alley toward the green car, two of those men ran inside the house. Carter got behind the wheel of the green car, and Reeves sat in the front passenger seat. As Carter began to drive away, Reeves saw two men come out of the house and run toward the street. Reeves testified that appellant stepped into the middle of the street and pulled out a black semi-automatic gun. Reeves warned Carter to duck, and Carter did so, but nevertheless was hit when the gun was fired into the driver's side of the car. Carter, bleeding profusely from the gunshot, became "weak" and crashed the green car into a vehicle that belonged to appellant. Reeves, who was "in shock" as he tried to cover Carter's mouth to keep the blood from flowing out, testified that the shooter ran across Prout Street toward the playground on the opposite side of the street. Reeves stayed with Carter until he heard sirens, and then left the scene.*fn2

Reeves later gave Detective Gail Russell-Brown, the lead investigator, a description of the shooter as chubby, 200-300 pounds, about 5'8", dark-skinned with facial hair and dreadlocks, and wearing a white t-shirt, blue jeans, and black Nike shoes. He also identified appellant as the shooter from a photo array.

Raymond Brooks, who had known appellant for eight or nine years and had been close friends with him, was also present at 2220 Prout Street at the time of the shooting. When Brooks arrived there, appellant was sitting on his porch with some other men from the neighborhood, including brothers Earl and Jamal Curley. Brooks testified that appellant became "disturbed or something" and "got up off his porch and left." Brooks remained standing on the porch, talking to the Curley brothers. Brooks's attention was eventually drawn to the alley to his right, where he heard some people yelling, with appellant yelling the loudest. Thereafter, appellant and a man named Charlie Smith, who was known as "Gutter" to his friends, ran past Brooks and went into appellant's house. Brooks testified that when appellant and Charlie came out of the house, "it look[ed] like [appellant] . . . had a gun or something in his [right] hand." Brooks did not see anything in Charlie's hand, and he did not hear appellant say anything as he left the house. Moments later, Brooks heard "tires going against the gravel" in the alley, and then two or three gunshots coming from the alley. He turned around and saw "[Carter] get hit and all this blood come out [of] his mouth and then [Carter] crashed into [appellant's] car." Appellant ran back toward his house, and Brooks, who was still standing on the porch, heard appellant say "Guzzle or Gutter hit my car." As appellant ran up the porch steps, he bumped into Brooks, and Brooks saw the back of the gun in appellant's right hand, and also felt the gun as appellant brushed past him. Appellant then fled from the house, running toward Nicholson St., S.E. Charlie "disappeared" after the shots were fired.

Brooks also left the scene, walking in the same direction as appellant. Shortly thereafter, Brooks saw appellant near the intersection of Minnesota Avenue and Nicholson Street, S.E. Appellant approached Brooks, hugged him, told him he was "sorry," and then continued walking up Minnesota Avenue. Brooks then returned to the scene of the shooting, and was still there when appellant telephoned him and asked whether the police had gone inside appellant's house. Brooks subsequently received several calls and messages on his cell phone from appellant. In one of the messages, appellant told Brooks to call him back, and said "I want to know if you [are] okay," and "[w]e [are] supposed to be brothers, call me back."

Detective Russell-Brown interviewed Brooks on the evening of the shooting and the following day.*fn3 Brooks told the detective appellant's name, and gave her a description: 23 to 24 years old, about 5'7", 300 pounds, plaits in his hair, brown complexion, and wearing a red shirt and blue jeans. Brooks also gave the detective a description of Charlie: short and "stubby," 5'4" to 5'5", 215-220 pounds, dark complexion, small mustache, and low-cut hair. A few weeks before trial, Detective Russell-Brown showed Brooks a photo array that included Charlie's photo, and asked Brooks whether he recognized in the group of photographs anyone who was on the scene the day of the shooting. Brooks picked out the photograph of Charlie, identifying him as "the one that ran past me with [appellant] while [Brooks] was talking to [the Curley brothers]."*fn4

On September 11, 2007, three days after the shooting, appellant
appeared voluntarily at the police Homicide Office, and met with
Detective Russell-Brown in an interview room. Two camera pods in the
interview room recorded both the interview and the telephone calls
that appellant made
while he was alone in the room during three brief intervals. During
both the first and second calls, which appellant made before he was
placed under arrest, appellant told the person to whom he was speaking
that "they" - presumably, the police - "know everything."*fn5
The telephone calls were played for the jury.

The defense theory was that Charlie Smith was the shooter and killed Carter. The defense presented testimony that, at the time of the shooting, Charlie was under court supervision and was required to wear a GPS tracking device that continuously tracked his movements and reported his whereabouts to a private company that monitored the tracking device. The tracking device transmitted his position to a satellite approximately once a minute. A representative from the tracking company testified that he was able to determine from the tracking data that Charlie was in the 2200 block of Prout Street at the time of the shooting, and that one minute and forty-five seconds after the shooting, Charlie was "down south and to the west of Prout Street," near the intersection of Minnesota Avenue and 22nd Street. This intersection is about a half block west of the playground toward which Reeves said he saw the shooter run, and is in the opposite direction from where Brooks testified that appellant headed after the shooting.

Mark Wimbush, appellant's nephew, was returning home to 2220 Prout Street on the day of Carter's murder when he found the street blocked off by police. Wimbush saw Brooks, whom he knew, standing near the playground across the street from 2220 Prout Street, and asked Brooks what had happened, to which Brooks responded that he did not know. Wimbush later asked Brooks why the police were about to tow Brooks's car, and again Brooks said that he did not know. Brooks and Wimbush then approached the police and asked why they were towing Brooks's car, and according to Wimbush, the detective replied "that we know that you know something and until you come and talk to us down at the precinct then we're going to take your car."*fn6

Earl Curley, appellant's close friend, testified that he heard gunshots coming from the area by the alley and that he had a "peripheral" view of appellant running toward him as the shots were fired, although he did not see appellant's hands. Curley testified that he did not believe appellant was the shooter because "then [there] would have been some bullet holes in his car, and, who knows who else he would have shot because he would have been running, I guess, looking away from where he was shooting because he's running."*fn7 Curley and his brother ran from the house to Minnesota Avenue, and ...

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